Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As employers continue to grapple with the ever-changing legal landscape of COVID-era regulations, 2021 will bring changes to the traditional realm of employment law in dozens of jurisdictions. Compared to prior years, there are significantly fewer new laws and regulations taking effect the first of the year. This is likely because state legislatures focused on emergency pandemic-related laws while in session. Nonetheless, employers will still face many new obligations in the months ahead.
Some states and localities are enacting legislation to better distinguish independent contractors from employees, while others are implementing laws to restrict or prohibit the conditions under which a criminal record can be considered in employment decisions. Unique 2021 laws include Portland, Oregon’s restriction on the use of facial recognition technology and Montgomery County, Maryland’s guarantee of 30-hour minimum workweeks for employees engaged in janitorial services.
See the chart and links below for access to summaries of several employment-related laws taking effect in 2021. Please note that the below list includes generally applicable laws taking effect in states and some large municipalities. It is not an exhaustive list, and may not necessarily include laws applicable to your particular industry. In addition, this list does not include laws regarding minimum wage and overtime requirements. Those new laws are addressed in a separate Insight.
The Golden State once again enacted the lion’s share of new laws. Governor Newsom signed over 20 new labor and employment bills into law in 2020. Those taking effect in early 2021 are listed below.
|
Law |
Main Topic |
Summary |
Effective Date |
|
Contingent Workforce – Independent Contractors |
Extends for one year (until January 1, 2022) the exception from the ABC test for newspaper carriers. |
1/1/2021 |
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COVID-19 Notification |
Allows the state to track COVID-19 cases in the workplace more closely. Expands Cal/OSHA’s authority to issue Stop Work Orders for workplaces that pose a risk of an “imminent hazard” relating to COVID-19. Requires notice in the event of a COVID-19 exposure in the workplace, including providing written notice to “all employees” who were at the worksite within the infectious period who may have been exposed to the virus. |
1/1/2021 |
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Corporate Boards – Diversity |
Requires that a publicly traded corporation with a principal executive office in California appoint members of underrepresented communities to the Board of Directors. |
1/1/2021 |
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Privacy |
Grants another one-year extension (until January 1, 2022) of the exclusion of certain Human Resources data from coverage under the California Consumer Privacy Act. |
1/1/2021 |
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Security Guards – Rest Breaks |
Allows employers to require that security guards covered by collective bargaining agreements, and paid at least one dollar more than minimum wage, remain on premises and on call during rest breaks. |
1/1/2021 |
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Unemployment – Work Sharing |
Automates parts of California’s work sharing program. |
1/1/2021 |
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Whistleblowing |
Prohibits adverse action against employees who have filed any proceeding under the Consumer Financial Protection law. |
1/1/2021 |
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Statute of Limitations for Wage/Hour Discharge – Discrimination Complaints |
Lengthens from six months to one year the statute of limitations for bringing a claim of discriminatory discharge in violation of any law under the jurisdiction of the Labor Commissioner; authorizes attorney’s fees for successful plaintiffs. |
1/1/2021 |
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Human Resources – Mandated Child Abuse Reporting |
Designates Human Resources professionals who work for businesses that employ minors, and employ five or more employees, as mandated child abuse reporters. Such persons must be given mandated reporting training, and a written statement describing their obligations. |
1/1/2021 |
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Protected Time Off – Kin Care |
Provides that the designation of sick leave taken for kin care shall be made at the sole discretion of the employee. |
1/1/2021 |
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Discrimination and Harassment |
Clarifies when a no-rehire provision in a settlement agreement regarding harassment, sexual assault, or criminal conduct is permitted; requires certain employer documentation. |
1/1/2021 |
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Public Works |
Lowers threshold for qualifying as a public works project for purposes of the minimum wage. |
1/1/2021 |
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Family Temporary Disability Insurance |
Expands Family Temporary Disability Insurance (FTDI) program to include absences due to military service of family member. |
1/1/2021 |
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Petroleum Facility Safety-Sensitive Employees– Rest Breaks |
Allows employer to require that employees in safety-sensitive positions at petroleum facilities covered by collective bargaining agreements, and paid at least 30% more than the state minimum wage, remain on premises and on call during rest breaks. |
1/1/2021 – 1/1/2026 |
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Acute Care Hospital –PPE Supplies |
Requires acute care hospitals to supply PPE to employees who provide direct patient care, and ensure that employees use PPE. Beginning April 1, 2021, acute care hospitals must maintain a three-month supply of PPE, and provide an inventory of PPE to the Division of Occupational Safety and Health upon request. |
1/1/2021 and 4/1/2021 |
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Health Care Worker Training |
Requires acute care hospitals to reimburse certain training expenses of employees and job applicants. |
1/1/2021 |
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Protected Time Off – Crime Victims |
Expands leave for victims of domestic violence, sexual assault or stalking to include leave for the victim of any crime that caused physical injury or mental injury with a threat of physical injury. |
1/1/2021 |
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Report of Wage and Hour Violations |
Requires that corporations register with the state information regarding violations of the wage orders or Labor Code. |
1/1/2022 |
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Employment Taxes |
Permits any notice or document required to terminate, modify, or release an earnings withholding order for taxes to be served by electronic transmission. |
1/1/2021 |
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Pay Data Reporting |
Requires businesses to report to DFEH pay data for various categories of employees. |
1/1/2021 |
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CFRA Expansion |
Expands California Family Rights Act (CFRA) coverage to employers of five or more employees. Expands categories of family members covered by CFRA leaves. |
1/1/2021 |
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Representation of Financially Disabled Persons in Arbitration |
Labor Commissioner will represent financially disabled persons when wage claims are referred to arbitration. |
1/1/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
|
Unemployment Compensation & Eligibility |
Provides that employees forced to leave work for domestic violence-related safety reasons, may still be eligible for unemployment benefits; expands definitions of family members; permits severance pay to be deducted from unemployment compensation. |
1/1/2021 |
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Pay Equity & Discrimination |
Prohibits wage discrimination based on sex and gender identity; prohibits employers from seeking an applicant’s salary history and from barring employees from disclosing or discussing their wages. Mandates transparency in wages and advancement and provides damages for non-compliance. |
1/1/2021 |
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Paid Leave |
This law allows employees to accrue at least one hour of paid sick and safe time leave for every 30 hours they work, up to a maximum of 48 hours per year. *The law will apply to employers with 16 or more employees starting January 1, 2021, and then apply to all employers on January 1, 2022. |
*1/1/2021 |
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Law |
Main Topic |
Summary |
Effective Date |
|
Paid Leave |
This law establishing a Family and Medical Leave Insurance Program was enacted in 2019. Leaves covered by the program do not begin until January 2022. Employers must, however, begin payroll deductions to fund the program starting January 2021. |
1/1/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
|
Criminal Background Checks |
Allows rehabilitated individuals to petition the court to restrict and seal certain criminal records, and prohibits the use of an employee’s criminal history information in an action against an employer for the employee’s actions. |
1/1/2021 |
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Wage & Hour – Garnishments |
Limits the amount of wages that can be garnished for student loan repayment to 15% of garnishee’s weekly disposable earnings. |
1/1/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
|
Protected Time Off – Domestic Violence |
Makes changes to documents that an employer may request to verify that an employee is a victim of domestic or sexual violence. |
1/1/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
|
Contingent Workforce – Independent Contractors |
Establishes the circumstances under which certain independent contractors are not considered employees for purposes of various laws. |
7/1/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
|
Employee Definitions |
Provides the definitions of “employee” and excludes independent contractors from definition of “employment” for the purpose of unemployment benefits. |
1/1/2021 |
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Law |
Main Topic |
Summary |
Effective Date |
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Protected Time Off – PTO General |
Entitles employees to accrue one hour of paid leave for every 40 hours worked, up to 40 hours per year, where the employer has more than 10 employees. |
1/1/2021 |
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Protected Time Off – PTO Rules |
Creates procedures for accruing paid leave, providing notice of the need to use leave, scheduling use of leave, and penalizing denial of paid leave. |
1/1/2021
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|
Law |
Main Topic |
Summary |
Effective Date |
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Wage & Hour – Scheduling |
Requires certain employers to provide a minimum work week of at least 30 hours for each employee working as a janitor, building cleaner, security officer, concierge, doorperson, handyperson, or building superintendent and performing janitorial services. |
1/1/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
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Paid Leave |
Beginning on January 1, 2021, all private Massachusetts employers must provide covered individuals with paid family and medical leave, funded through a payroll tax. |
1/1/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
|
Contingent Workforce – Independent Contractors |
Creates the Freelance Worker Protection Ordinance; requires contracts for service to be set forth in writing and provides an enforcement mechanism for failure to pay a worker as agreed upon in the contract. |
1/1/2021 |
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Law |
Main Topic |
Summary |
Effective Date |
|
Criminal Background Checks |
Prohibits employers from basing hiring or promotion decisions on an applicant’s criminal history, unless the employer can demonstrate its relevance to the employment-related decision. |
1/1/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
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Benefits – Health Insurance |
Establishes requirements for obtaining a certificate of authority for self-funded multiple employer welfare arrangements. |
1/1/2021 |
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Safety Training |
Expands mandatory safety training to include employees performing work at sites primarily used for trade shows, conventions and related activities. |
1/1/2021 |
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Law |
Main Topic |
Summary |
Effective Date |
|
Business Restructuring |
Expands employers’ advance notice and severance pay obligations under the Millville Dallas Airmotive Plant Job Loss Notification Act (New Jersey mini-WARN). *Note that the effective date of this law has been extended several times due to the pandemic. It is possible that the current effective date will once again be extended. |
8/13/2021*
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|
Law |
Main Topic |
Summary |
Effective Date |
|
Wage Payment – Pay Stubs |
Enables employees who have chosen direct deposit to receive electronic confirmation of direct deposit in lieu of paper pay stubs. |
4/5/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
|
Privacy – Surveillance |
Prohibits private entities from using facial recognition technology in places of public accommodation. |
1/1/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
|
HB 1407 (SB 744) |
Contingent Workforce: Independent Contractors |
Creates a presumption that a worker is an employee, unless either party proves independent contractor status under federal IRS guidelines. Prohibits worker misclassification, providing civil penalties and prohibiting contract awards from public bodies and covered individuals for violations. |
1/1/2021 |
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Cell Phones/ Texting |
Prohibits holding a handheld personal communications device while driving a motor vehicle, subject to several exceptions, including for emergency situations and personnel employed by certain emergency services. |
1/1/2021 |
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|
Law |
Main Topic |
Summary |
Effective Date |
|
Criminal Background Checks |
Prohibits denying employment to a care provider or licensing to an early childhood educator where a background check reveals that the individual has a finding of child abuse or neglect in their record, but has since obtained a certificate of parental improvement, as defined in the new chapter. |
1/1/2021 |
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Employment Taxes |
Imposes a local payroll tax on employers doing business within the City of Seattle. |
1/1/2021 |
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